R v Niko

[2016] NZHC 3028

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2016-091-1470 [2016] NZHC 3028

THE QUEEN

v

PETER NIKO

Hearing:	13 December 2016
Counsel:	A McCubbin-Howell for Crown K Preston for defendant
Sentence:	13 December 2016

SENTENCING NOTES OF DOBSON J

[1]      Mr Niko, this was exceptionally cruel offending.  On one view, it is almost as bad as if you had killed your victim.  That is because, after the four hours of very serious sexual and violent attacks on her, committed after you had tricked your way into her home and inflicted the attack on her, you have put her in a prison of her own for the rest of her life.  Although we hope that the victim will make some recovery from  the mental  and  emotional  scars  you  have inflicted  on  her,  I am  going to sentence you on the basis that you permanently took away from this 65 year old woman life as she knew it.

[2]      From being outgoing and independent, confidently living on her own, she is so shattered and lacking in confidence that she has to live with other members of her family.  From being trusting and open with others, your offending has caused her to

be constantly fearful and suspicious of others.

R v NIKO [2016] NZHC 3028 [13 December 2016]

[3]      I tell you right at the outset that, because of that, you will be going to prison for a long time.

[4]      One consideration that the Crown has raised in its submissions is whether the risk of your committing this type offence again on your release is serious enough to warrant the indefinite sentence of preventive detention, which would mean that you would be detained indefinitely until mental health experts assess the risk of doing something like this again was sufficiently reduced to release you into the community. I tell you at the outset that I am not satisfied that a serious level of that risk exists to warrant a sentence of preventive detention, so the outcome for you will be a sentence of a definite period of years.

[5]      Now, there will be six parts to my sentencing.  It is going to take a while but you have heard the exchanges with the lawyers and this is a serious matter and I have to explain the sequence and the detail.  So first, I will assess the facts, I hope in no more than sufficient detail to enable me to rank its seriousness against other offending  of  its  type.    Judges  do  try to  be  consistent  so  that  similar  levels  of offending attract similar sentences.

[6]      The second part is then to identify a starting point that reflects the seriousness of your conduct in carrying out this offending.

[7]      The third part is to assess whether there are any circumstances particular to you as the offender that make your offending worse.  For example, where offenders have committed serious crimes of the same type before, that is an aggravating factor that can justify increasing the sentence for the present offending.

[8]      The fourth part is to consider circumstances personal to you that should be taken into account as reducing your level of responsibility for carrying out the crimes as you did.  Those things can be applied to your credit to reduce the sentence that would otherwise apply.  In your case, for instance, pleading guilty at an early stage is a mitigating factor.

[9]      The fifth part is to decide whether preventive detention is the appropriate sentence.  There have been reports on you from a psychologist and a psychiatrist, and  I  will  review  the  predictions  they  make  of  re-offending  in  reaching  the conclusion I have already told you about, namely that I do not consider preventive detention is warranted in your case.

[10]     Then the sixth and final part is to indicate the end sentence, and it is my duty then to impose it on you.

[11]     In undertaking this exercise, the law requires me to denounce your conduct, that is, to acknowledge the heavy criticism by the community of such offending.  I also have to impose a sentence that will protect the community, deter you from doing it again, and also send a signal to deter others who might be thinking about such ghastly crimes.

[12]     In  the  end,  I  also  have  to  have  a  view  to  the  prospects  of  your  being rehabilitated and reintegrated into society, so that the end sentence is no harsher than is necessary to achieve the combination of factors that influence the setting of the sentence.

[13]     So I will turn then to the first part – a review of the facts.  You and the victim were strangers.  She lived alone and at 7 am one morning you tricked her into letting you into her house with a made-up story that a daughter of yours was missing and that the Police had told you to wait where you were.  She let you into her house on the second occasion you knocked on the door, pretending you were distressed and asking if you could wait for the Police inside her home.  Believing your story, the victim let you in and made you a cup of coffee, and you shared a cigarette.  You worked out that she lived alone.  You asked to use the toilet and for your victim to show you where it was.  When the two of you began moving through the house you grabbed her from behind and held her in a headlock.   She struggled, you crudely ordered her not resist and that initial assault, including you scratching her face and causing it to bleed, is reflected in the charge of aggravated wounding, and forcing her into the bedroom represents the charge of abduction.

[14]     You forced her onto the bed and told her that you had a knife and that you were going to cut her into pieces. You physically stifled her screaming and strangled her to the point of the victim losing consciousness.   After she initially regained consciousness, you stuffed her underwear into her mouth to a point where she could not breathe and again she briefly lost consciousness.

[15]     Throughout your attack, you threatened to cut the victim with a knife, you said you had been paid $10,000 to do it and that you could not leave until you had cut her into pieces and put her in bags.  That aspect of your conduct is reflected in the charge of threatening to kill.

[16]     You also demanded that she get undressed and open her legs.  The victim was afraid for her life and tried to comply, but when she had difficulty pulling her lower clothes off, you pulled them off her.  You tied the victim’s hands together so tightly that you caused her considerable pain. The victim had a previous wound on her hand and the binding was so tight that that re-opened the wound and made it bleed.

[17]     You demanded that she turn over and get on all fours on the bed and she complied. You told her to keep her head down and each time she raised her head you pushed her head back down into the pillows.  During this activity you said that you would cut her open from behind and she was so afraid that she complied with your demand that she talk dirty to you.  At one point, the victim lost balance because her wrists were bound and she fell off the bed, banging her head on the floor.  She was unable to get up unaided, and you dragged her back onto the bed by her bound wrists.  You then pushed your penis into her vagina and that act is covered by the representative charge of rape.

[18]     Next, you forced the victim to perform oral sex on you and whilst that was occurring you roughly pushed your fingers into her vagina, causing her considerable pain.  Those two parts of the offending are reflected in charges of sexual violation by unlawful sexual connection.  After further indignities and forcing the victim to take off the remainder of her upper clothing, you began a second rape by pushing your penis into her vagina,  but that did not last  as  you  were unable  to maintain an erection.  The victim sensed that that frustrated you and you became more agitated.

She endeavoured to calm you down, and you both moved into her lounge for a cigarette.  After a period in the lounge, you forced the victim onto the floor, you licked her vagina and anus and that is the subject of a further count of unlawful sexual connection.  There was then a further rape in the lounge, after which you got yourself dressed, insisted that the victim wash, take the sheets from the bed and put them into the wash.  You removed evidence of the cigarettes, which were flushed down the toilet, and walked around the house wiping the handles of the doors with the sleeve of your jersey to remove fingerprints. At around 11 am, you left her house after telling the victim you were not going to kill her or cut her into bits, but you made her promise not to tell the Police.  You also told her that you had done that sort of thing before and had cut up two men and a woman.

[19]     The victim was left with a range of physical injuries when assessed after the event.  Some of the sources of physical pain still continue.  I have acknowledged the mental pain that persists.

[20]     Throughout this horrible ordeal, you crudely intimidated and demeaned the victim by your comments.  In assessing the offending, I take into account the victim impact statements from your victim, which was read this morning, and also one from her  daughter,  which  Mr Preston  assures  me  you  have  also  seen.    The  victim’s statement shows how there was considerable physical pain and, as importantly, very severe mental and emotional harm suffered by her.  I admire her hoping that she will recover her independence, but she assesses her emotional and mental harm as being long-term, and that is realistic.

[21]     The victim impact statement from her daughter gives insight into the wider harm that your offending caused the victim’s family.  Instead of being able to focus on her two young children and her husband in making their own lives, they have had to make room to accommodate her mother in their home.   The daughter understandably identifies very closely with the huge damage inflicted on her mother. Those are the facts.

[22]     Turning to the second part of the sentencing analysis, I need to establish a starting point for the appropriate length of prison term.   There is a 2010 Court of

Appeal decision in R v AM, and it sets guidelines for the appropriate starting points for various bands of both rape and unlawful sexual connection.1   Your counsel, and counsel for the Crown, agree that this offending sits in the higher end of band three for rape.  The Court of Appeal in R v AM indicated starting points for band three between 12 and 18 years’ imprisonment, depending on the number of aggravating features of the offending conduct.

[23]     This was a form of home invasion where you tricked your way into the victim’s home.  Because of the level of violence, the length and brutality with which you then detained her, the extent of the offending, the vulnerability of your victim, a measure of pre-meditation and planning (including the steps to try to hide your presence at the property before you left), the extent of harm to your victim and your degree of violation of her, this must place your offending towards the very top of band three.

[24]     The Court of Appeal has warned that it may not be appropriate for sentencing judges to go searching for factual circumstances of earlier cases in order to decide what the correct starting point is in any particular case.  Nonetheless, counsel have referred me to a range of cases for the purposes of checking on a comparative basis. Of those, I find the case of R v Kahui that both counsel have mentioned this morning to be the nearest parallel.2    Many of the aggravating features of the offending there are also present in more or less similar measure in your case.  I accept the point from Mr Preston’s  written  submissions  that  there  was  greater  planning  in  that  case,

because  of  evidence  suggesting  that  Mr Kahui  had  been  in  the  victim’s  house previously, and may have stalked the victim.  I infer that the victim was materially younger in Kahui, which somewhat reduces her vulnerability.  The Court of Appeal’s analysis of the sentencing process in that case focused on the length of a minimum period of imprisonment (MPI) in a case where there was inarguably justification for the trial Judge to have ordered preventive detention, that is, the indefinite sentence. The trial Judge had observed that a finite term, which is what I am now considering for you, would have been “somewhere near 18 years” and the Crown stance on the

appeal was that a finite term of 19 to 20 years’ imprisonment could have been

1      R v AM [2010] NZCA 114, [2010] 2 NZLR 750.

2      R v Kahui [2008] NZCA 581.

imposed.   That comparison must take into account Mr Kahui’s substantially more serious list of previous convictions, but despite those differences, the characteristics of the offending itself remain relevantly similar.

[25]     The Crown contends for a starting point of 16 years, and on your behalf Mr Preston accepts it would be in the vicinity of 15 to 16 years.  I have considered the starting point in a substantial number of other cases and, more particularly, have reflected carefully on the extent of each of the aggravating features I have listed, as they are commented on in R v AM.  After careful reflection, I consider that counsel for both sides have under-rated the relative seriousness of your offending.   In my view, the number and relative seriousness of those aggravating features place this offending within the top 20 per cent of the range of seriousness of cases that fall within the six year span between 12 and 18 years provided for in band three for rape. In my view, that would require a starting point of 16 years and 10 months and I am satisfied that that is the appropriate starting point.

[26]     A feature of many cases in the very top of band three is that there was a pattern of offending over longer periods than occurred here – that is, on more than one occasion over weeks or months.   However, I find that the intensity of your brutalising your victim for four hours, and her heightened vulnerability because of her age and that she was so much smaller than you, require this offending to be ranked as similarly serious to those cases of offending over a longer period.  I am also mindful that, in many cases, offending as serious as this results in the indefinite sentence of preventive detention.  Where that is not going to occur, the starting point may increase somewhat, for example to recognise the need for protection of the community.  So that is my starting point.

[27]     The third aspect is to consider any aggravating features that would require me to  increase  it.     The  Crown  raises  your  relevant  previous  convictions  as  an aggravating factor.  Without punishing you again for crimes where you have already served a sentence, the law recognises that committing a similar type of offending within reasonable time after earlier offending – in your case, sexual offending – makes  the  offending  on  this  occasion  more  serious.   You  have  convictions  for indecent assault and sexual connection with a young person between the age of 12

and 16 that date from 2005.  You also have two convictions for male assaults female, in  addition  to  other  convictions  that  are not  for sexual  offending.   The Crown submits an uplift of six to nine months on the starting point is warranted.  Mr Preston has urged that three months is adequate.

[28]     I  accept  those  prior  convictions  are  a  troubling  factor  that  makes  your offending worse and I propose an uplift of six months’ imprisonment.

[29]     The fourth part of my sentencing analysis is to consider mitigating factors in your favour that would justify reducing the length of the prison sentence.  Most of the debate you have heard with me and counsel this morning has been focusing on identifying  those  factors  and  how  much  credit  you  could  be  given  for  them. Mr Preston has argued for a discount for the post-traumatic stress disorder (PTSD) you suffer.  You were violently raped at the age of 17, no doubt leaving you with physical scars, on-going physical health problems and, as importantly, longer-lasting mental  scarring.   Your  discussions  with  mental health  assessors  also  describe  a second rape, that was not reported at the time when you were in prison, by another inmate, and I think that was in 2004.  Your own understanding of this is that it has given you your own demons that you have to deal with.  Mr Preston has referred to Court of Appeal decisions that recognise a mental disorder such as PTSD may be recognised as reducing the appropriate sentence, either because that disorder has contributed to your cause of offending, or because maintaining the same sentence once that disorder is recognised would make the same length of sentence more

punitive for you because of your mental condition.3

[30]     Although the Court of Appeal has contemplated discounts  for this factor ranging between 12 and 30 per cent, I do not see the influence of PTSD in your case as warranting a separate discount in that range.  Without, Mr Niko, downplaying its importance to you, or the importance of addressing it as an element in your rehabilitation, I do not accept that it dominated your motivation for this sustained offending.  As you have heard, the mental health reports downplay the connection between the PTSD and the motives for your offending.  I will discount the starting point by 10 per cent on account of the recognised PTSD.

[31]     Another feature of the submissions I have heard is your explanation that you were fuelled by I think heroin and methamphetamine at the time.  Whether that is even an explanation for what you did, it is certainly not an excuse and I do not rank your conduct any the less serious because it occurred apparently when you were fuelled with drugs.

[32]     I  accept  that  you  have  also  demonstrated  a  form  of  remorse  for  your offending and the harm caused by it.   Mr Preston has submitted that that should qualify  you  for  a  separate  10 per cent  discount  standing  on  its  own.    Genuine remorse is to be recognised, but evaluating it in your case is difficult.  Your gross abuses of this vulnerable 65 year old woman, so much smaller than you physically that it was impossible for her to defend herself, would have included many chances to desist.  You could have come to your senses at many points, but did not, and it is all too easy to say you were sorry once apprehended.  I bear in mind that when you were initially interviewed by the Police, you started by denying any involvement, although subsequently in that same interview you did admit you were responsible, after having the strength of the case, including DNA evidence, put to you.  For the Crown, Ms McCubbin-Howell has pointed out the writer of the pre-sentence report considers you have an inconsistent attitude towards remorse and that there have been attempts by you to shift the blame for the offending.

[33]     After reflecting on all of that, I am not prepared to give you a separate credit for remorse, but it does become relevant to the last mitigating circumstance which I consider next, and that is your guilty plea.

[34]     Your early guilty pleas are important, perhaps more so in a case like this because it indicates an early acknowledgement of responsibility for your offending and also because it relieves the victim and her family of the on-going concern at the prospect of having to relive the horror of the offending in giving evidence at trial. You are therefore entitled to the full discount of 25 per cent in accordance with the

Supreme Court guidance in R v Hessell.4    In allowing you that maximum, I have

regard to an element of remorse, but also to the strength of the Crown case, because a guilty plea in the face of a strong Crown case is not worth as much credit as if the

Crown case was a weak one.  So having identified all those elements, the arithmetic would look like this:

·    Starting point of 16 years 10 months = 202 months

·    Plus uplift for your prior convictions of six months = 208 months

·    Less 10 per cent for your PTSD of 20.8 (21) months = 187 months

·    Less a separate 25 per cent reduction for the guilty plea of 46.7 (47)

months = 140 months.

[35]     So the end length of a finite sentence is 140 months which is calculated at

11 years and six months’ imprisonment.

[36]     The final step in setting the finite sentence is whether the circumstances of the offending would mean that your eligibility for parole on the usual rules would fail to satisfy the sentencing purposes of denunciation, deterrence, accountability and, importantly, protection of the community.  MPIs are generally considered, and

routinely imposed for serious sexual offending of this type.  In R v AM,5 a survey of

earlier MPIs in such sentencings suggested a range between 46 and 58 per cent. However, MPIs can be higher than that if the relevant concerns are present to a sufficient  degree.    Here,  the Crown  has  sought  an  MPI of two  thirds as  being required to protect the community from you and to deter you and others, and to denounce your conduct.

[37]     Mr Preston has recognised the appropriateness of an MPI being imposed but he had urged that I need not go any further than five years.  I cannot accept that.  The seriousness of your offending and the circumstances in which it occurred are very troubling.  In considering the protection of the community, I have regard also to your earlier sexual offending.  I am mindful also that, for reasons I will shortly explain, insufficient is presently known of the likelihood of your committing similar offences in  the  future  so  that  the  on-going  monitoring  of  an  indeterminate  sentence  of

preventive detention will not apply.  In all the circumstances of your case, I accept the Crown position that an MPI of two thirds or 66 per cent of the finite sentence is appropriate.

[38]     That brings me to the fifth part of my sentencing, namely the assessment of whether preventive detention is appropriate. You pleaded guilty in the District Court and your sentencing was transferred to this Court so that the option of preventive detention could be considered.

[39]     I have considered the mental health assessments from clinical psychiatrist Dr Barry-Walsh, and from the psychologist, Mr Fourie.   The object of preventive detention is protection of the community, so the issue is whether you represent a significant and on-going risk to the safety of members of the public.  You qualify for consideration because of the nature of the convictions I am now sentencing you on and because you were over the age of 18 when they were committed.   The final consideration is whether I am satisfied that you are likely to commit another qualifying sexual offence if released at the relevant expiry date of your sentence.

[40]     Dr Barry-Walsh has been unable to form a view on the likelihood of your offending in this way again.   He found you a difficult offender to assess, so the absence of a relevant opinion from him is mainly because of the lack of specific information to work with, rather than his ability to form a positive opinion that you will not re-offend.  Some judges might draw an adverse inference against you when there has been a lack of co-operation in that respect with a psychiatrist.  The Crown says it is not appropriate here and I have not done so.  I note that thorough attempts to help you address your sexual offending tendencies have not yet been tried. Indications that you are prepared to engage with courses designed to reduce the prospect of your re-offending in this way is both encouraging, and creates an uncertainty as to how the level of risk of further such offending should be gauged.

[41]     The psychologist, Mr Fourie, has undertaken numerous recognised tests, with your consent, and has assessed the pattern of your previous offences in light of the outcome of those results.  The ratings suggest that there is a moderate to high risk of you committing a further sexual offence and your offending history would suggest to

the psychologist that if you do re-offend, it would likely be prolonged and severe offending as occurred with the present victim.  That is very troubling, Mr Niko, but as the Crown’s submissions concede, it does not readily get to the threshold for a sentence of preventive detention.

[42]     I am mindful that such a sentence is not the only means of reviewing the need to protect the community from further violent sexual offending by you.  I hope that you will take advantage of the appropriate courses that will be offered to you in prison, and through the course of those you will afford mental health experts opportunities to be better informed in helping you and in predicting nearer your release date any risk of further offending.  So no preventive detention.

[43]     Instead I will impose on you finite sentences as I explained them.  Would you please stand.

[44]     Mr Niko, I sentence you on the representative charge of sexual violation by rape  to  11 years  and  six  months’ imprisonment.    On  the  three  convictions  for unlawful sexual connection, you are sentenced to six years’ imprisonment in each case.  On the conviction for aggravated wounding, you are sentenced to four years’ imprisonment.   On the conviction for abduction, you are sentenced to four years’ imprisonment.   On the conviction for threatening to kill, you are convicted and discharged.

[45]     All those sentences are to be served concurrently, that is, at the same time.

[46]     I also impose a minimum period of imprisonment at 66 per cent of that finite sentence, namely seven years and seven months, which is therefore the minimum

term that you will serve.  Stand down.

Solicitors:

Crown Solicitor, Wellington

Dobson J